Ari Ezra Waldman | Arizona | Discrimination | Jan Brewer | Law - Gay, LGBT

The Real Reason Arizona's Anti-Gay Discrimination Bill Was So Bad



When Arizona Governor Jan Brewer vetoed an odious discrimination bill that would have allowed private individuals and companies to deny service to and otherwise discriminate against gay persons, most people breathed a collective sigh of relief. Many Republicans were happy to erase this stain from their brand, though conservatives in several states have other plans. Most Americans were just happy Jim Crow was not coming back.

Not everyone was so pleased. The right wing was, of course, up in arms. But few of us spend much time worrying about what Michelle Bachmann or Rush Limbaugh think. Then there was George Will, a conservative commentator without the Hellfire that rises from much of today's extreme right. Mr. Will coats his comments with his particular brand of amiability and an aw-shucks attitude in a bow tie. But his words were the most malicious.

WillHere's what he said in reaction to the veto:

It's a funny kind of sore winner in the gay rights movement that would say, 'A photographer doesn't want to photograph my wedding -- I've got lots of other photographers I could go to, but I'm going to use the hammer of government to force them to do this.'... It's not neighborly and it's not nice. The gay rights movement is winning. They should be, as I say, not sore winners.

He characterizes us as winners, which is both a half-truth and red meat for his conservative audience. We have not won anything. Sure, we are racking up notable victories, but you can still be fired in 29 states simply for being gay and I cannot marry the man I love in 33 states. Yet arguing that the fight is already over heightens the feverish paranoia of his readers and listeners; that is, he is warning conservatives that the gays already took marriage away from you and now they're coming for something more.

He also characterizes gays as childish, as ungrateful "sore winners" who do not know how to be neighborly, mature, and adult about things. This may sound peevish and petty, but it also fits within a long standing conservative narrative about gay people as unserious, untrustworthy, small, and entirely hedonistic, just like children.

Mr. Will's greatest sin, however, is in his offensive misconstrual of the substantitive fight. To him, we have a choice between this or that photographer -- "I've got lots of other photographers I could go to" -- suggesting that mere choice is the paradigm for equality. This is the grave error libertarians commit, as well. Equality is barely half a loaf if its pinnacle is the ability to choose. True equality is also about equal dignity, about not being treated like a second-class citizens simply because of who you are. Avoiding state sanctioned discrimination because you may have another choice does not change the underlying fact of discrimination.


NogaysallowedImagine if you walked into a store holding your same-sex partner's hand and was told, politely, that you would have to leave. "This establishment declines to serve homosexuals." You're shocked, but the smiling discriminating proprietor adds, "But don't worry. There's a shop that serves you down the street."

Several things have happened here.

First, you are being singled out because of your (perceived) sexual orientation. Our society does not countenance discrimination on the basis of who we are, whether its the state doing it (the Equal Protection Clause has a few things to say on that) or private citizens who open their businesses up to the public (public accommodations laws apply here). In either case, the principle is offensive to modern notions of equality. A world that allows some businesses to discrimination on the basis of identity expresses to its citizens the value that discrimination is ok. If discriminating against a particular group is ok, then hating that group is also ok. They -- read: us -- become an "other", an "out-group", something unfamiliar and different and, therefore, unwholesome. "Othering" someone is bad enough; institutionally blessed discrimination allows mental othering to be manifested in physical form. For a particularly heinous example, look no further than Vladimir Putin's Russia.

Second, you are the object of stares, the center of attention, and, likely, the victim of snickers and taunts. Those who have taken to heart the cues of discrimination will single you out for harassment and hate. Even if they just stare, your sense of self is eroded by their inappropriate, rude, and condescending behavior, all of which has been condoned and invited by a pro-discrimination law.

And, third, the alternative shop may exist, but it is as if it exists to emphasize your otherness. The shop down the street is an alternative only because you were forced, by individuals taking advantage of a state law, to look for alternatives.

Libertarians and conservatives looking to sound less hateful talk a lot about choice and freedom. But their version of choice and freedom is empty and naturally favors the status quo. Of course we have the choice to go to another photographer. We also have the income to try to use market forces to punish a discriminating business owner. That way, the theory goes, the market will eradicate discrimination. But equality based on the ability to choose grants a life line to discrimination. It feeds it the unending stream of hate that will always exist on the right wing of any society and has the expressive effect of condoning more and more discrimination.

Equality is more than choice. It is treating every person with the full dignity they deserve. The Arizona law would not have done that. Mr. Will and the law's other apologists don't seem to care.


Follow me on Twitter: @ariezrawaldman

Ari Ezra Waldman is a professor of law and the Director of the Institute for Information Law and Policy at New York Law School and is concurrently getting his PhD at Columbia University in New York City. He is a 2002 graduate of Harvard College and a 2005 graduate of Harvard Law School. Ari writes weekly posts on law and various LGBT issues.

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  1. George Will has always been the bland, self-congratultory talking head of TV Conservatism. His comments come from the Good Old White Boy perspective, and his pseudo-intellectual comments should be ignored.

    Posted by: Jack M | Mar 13, 2014 10:51:39 AM

  2. As I keep pointing out, the idea that there are other choices is literally an urban myth when you live in largely rural states. There may not be other choices for a hundred miles and those establishments may also choose to discriminate, eliminating one from the market entirely. The theory also presumes everyone has transportation to travel that distance or somehow find some friendly port in the homophobic storm.

    The fact is that discrimination is less likely to happen in a large urban area where there are other choices. It is going to happen in small towns and rural areas where people are less open to different people, as a rule. That is why public accommodations laws cannot be given an exception to discriminate.

    Posted by: Miche Rutledge | Mar 13, 2014 10:57:27 AM

  3. One of Ari's best articles ever. What a fantastic response.

    Posted by: ATLJason | Mar 13, 2014 11:01:59 AM

  4. Remember the old adage, "Never trust a man in a bow tie."

    Posted by: Phil | Mar 13, 2014 11:02:46 AM

  5. "...the unending stream of hate that will always exist on the right wing of any society..." - as with most things you got that right Mr. Waldman. I accept it and move on with a backward look of appreciation for your having placed such a well shod foot into the unctuous mouth of Mr. Will, and then pressed your point right down his righteous pie hole. Thank you.

    Posted by: UFFDA | Mar 13, 2014 11:04:35 AM

  6. "There are lots of other lunch counters that would welcome me in the black ghetto of town, but I can't be bothered to get the exercise of walking 12 blocks from my workplace, so I want the heavy hand of government to force Woolworth's to make my tomato and cheese sandwich."

    These days, they never seem to use this kind of well-established example of "the right to not serve people based on my religious beliefs." Though the principal is EXACTLY the same, they know that their base, the Evangelicals and Southern Baptists and Mormons which were firmly behind THAT brand of discrimination, has lost their stomach for it but still embraces the same kind of discrimination against gays.

    Posted by: GregV | Mar 13, 2014 11:04:46 AM

  7. Do you realize that you are arguing AGAINST freedom, rather than for it? By your logic, the gay hair stylist that refuses to continue serving the NM governor is wrong and should be forced to provide his services regardless of her stance.

    I'm NOT saying that it is a good or moral thing to discriminate against gays, or blacks, or anyone else for that matter, but freedom includes the right to be a jerk, as long as you are not harming another. Freedom of association means that each person has the right to choose who he or she interacts with, and you do not somehow miraculously lose that right because you own a business.

    No one has a natural right to force others to interact with him. Should a gay printer be forced to do business with the Westboro Baptist Cult, for example, or should he have the right to refuse to do business with them? Freedom works both ways.

    Posted by: Rob | Mar 13, 2014 11:06:10 AM

  8. Don't forget that businesses make contracts with the state for a host of incentives (tax related etc.), and as such have to comply with the State's standards with regard to non-discrimination policies. This is what every right-winger has failed to outline. We're not in the 19th century anymore where you could just open shop.

    Posted by: Gibblet | Mar 13, 2014 11:09:37 AM

  9. Rob, you're a fool. The hairstylist was likely not a business owner. Completely different thing.

    Also your analogy is off. Your gay printer wouldn't be turning away all chirstians, just foul mouthed bigoted ones. HOWEVER, under this evil law (you so want) any religious person could deny ALL gay people regardless if that gay person was religious too.

    Think before you mouthbreath Rob, K?

    Posted by: Gibblet | Mar 13, 2014 11:13:12 AM

  10. Ari, the Jim Crow analogy is certainly on point. Looks like Mr. Will is saying that "separate but equal" is a perfectly good state of affairs. Unfortunately,we know what sounds right in theory doesn't work in the real world. I've heard the "sore loser" comments before -- its not the words of Mr. Will and he should have provided attribution. We have gone from perverts who don't deserve rights to people asking for "special rights" to "sore losers". I'll take it.

    Posted by: Turing's Ghost | Mar 13, 2014 11:17:44 AM

  11. I am the biggest eye roller when I see Ari's name. I read what he writes and then eye roll about he subjects me to his point/counterpoint opinion about the nature of things. As if it were gospel.

    This was brilliant. Thanks, Ari. I did not roll my eyes.

    The phrase: True equality is also about equal dignity, about not being treated like a second-class citizens simply because of who you are.

    Posted by: Mitch | Mar 13, 2014 11:19:48 AM

  12. Rob,

    You're on a hard left site. The concept of freedom is alien to leftists. They want to control the behavior of everyone and would never leave people alone. Their cognitive abilities are inadequate to see the world from other people's perspective.

    Posted by: AG | Mar 13, 2014 11:26:50 AM

  13. AG aka Rob

    If you want to discriminate against people don't open up a business which has to operate under government standards. What on Earth do you not get about that???

    Posted by: Gibblet | Mar 13, 2014 11:28:46 AM

  14. @Rob, you can make the argument that all non-discrimination laws are bogus (at least that's consistent) and therefore any business should be able to turn away any customer for any reason (basically saying that whites-only lunch counters were acceptable) but ... even if you believe that, the Arizona law did not give everyone an equal opportunity to be a jerk, as you put it. It, and others laws like it, carve out a special right to discriminate that is only granted to the religious. If you're taking about freedom, how is carving out exemptions for one group above all others liberty for all?

    If I were a business owner, I would full expect (and in my state would be legally obligated) to serve people whose values I don't share. That's part of what it means to open your doors to serve the public. And, if you really don't want to serve someone, you have a free speech right to discourage their business. How many customers would want to do business with someone who openly disdains them? That's different than being given a special right to exclude.

    Posted by: Ernie | Mar 13, 2014 11:33:25 AM

  15. @AG, there's nothing "hard left" about thinking that the religious should not have a privilege to discriminate that no one else has. The Arizona law was opposed by the far-from-left likes of major corporations and John McCain.

    Posted by: Ernie | Mar 13, 2014 11:39:58 AM

  16. Rob AKA AG- in the state of Arizona it is illegal to discriminate against people based upon their religion or creed:

    The gay printer in Arizona could not legally turn down the Westboro fools if their signs expressed their religious views.

    Posted by: homer | Mar 13, 2014 11:45:03 AM

  17. If the law doesn't force businesses to advertise who it is they will and will not serve, just how are customers supposed to take George Will's advice to just select a photographer that wants your work?

    Are you expected to just travel from business to business until you happen across one who doesn't toss you out based on their "firmly held religious beliefs"?

    If the businesses want that "right", then they should be forced to post signs just like the old "Whites Only" signs that were posted in the days of Jim Crow.

    Posted by: anon | Mar 13, 2014 11:46:47 AM

  18. Even Nancy Reagan doesn't like Georeg Will.

    Posted by: chasmader | Mar 13, 2014 11:49:37 AM

  19. "The gay printer in Arizona could not legally turn down the Westboro fools if their signs expressed their religious views."

    And you don't think it's outrageous? Of course, it is. Perhaps that will make you realize that non-discrimination laws are not an unalloyed good.

    Posted by: AG | Mar 13, 2014 11:52:49 AM

  20. I think the point that’s being missed in this discussion is that Arizona doesn’t have a state-wide law prohibiting discrimination based on sexual orientation. Except for a few large cities with non-discrimination ordinances, there’s currently no penalty for discriminating against gay people. So there’s no need for an exemption for individuals who don’t want to serve gay people because of their religious beliefs.

    This is part of a broader effort to expand religious exemptions to individuals and businesses that in the past have only applied to religious institutions. Hobby Lobby’s challenge to healthcare laws requiring them to provide insurance that covers birth control or pharmacists refusing to dispense medications that they don’t approve of are other examples. When you run a business, you have to comply with the law. We can’t allow businesses to use the religious beliefs of their owners to avoid complying with laws that their competitors have to.

    Posted by: Archie | Mar 13, 2014 11:58:46 AM

  21. @AG

    You don't get it. The laws talked about only protect religious people. No one else. Non-discrimination laws ARE great. They are unalloyed good and it seems that people like you only make it an issue when we're talking about religious people not being able to legally discriminate.

    Posted by: Gibblet | Mar 13, 2014 12:02:19 PM

  22. Freedom unfettered is not civilization. The constitution itself is our consent to give up certain aspects of unfettered freedom in order to form a civil society based upon laws. The very heart of that constitution is the tenet of equality and the guarantee of equal protection under law. 'All men are created equal.'

    The Arizona law and others like it are the very antithesis of this tenet. They are based on the premise that anyone can operate outside these guarantees by claiming religious liberty as a valid excuse to discriminate. The underlying principle is that whatever religion teaches is sacrosanct and is a shield against the laws that make us an enlightened civilization and allow us to progress. We need look no further than their 'creationism as science' attempts to see the very real danger that fosters.

    Historically a claim of religion has been the proffered excuse to discriminate against every non-white non-Christian non-male group in America. LGBT are it's latest iteration.

    Courts have ruled that women must be treated equally in society. They have ruled the same for all other group distinctions subjected to societal discrimination; racial, ethnic, religious, disability, and national origin. Courts have not hesitated to say those who claim religion gives them the right to do so 'this you can not do'. Is protecting the equality of it's LGBT citizens somehow less important, less valid?

    Posted by: SERIOUSLY | Mar 13, 2014 12:08:18 PM

  23. Well written, Ari. Thanks.

    Posted by: Joe in Ct | Mar 13, 2014 12:09:00 PM

  24. I have long considered George Will to be a stuffy man stuck in old prejudices clothed in expensive suits and ties. He talks like a professor in fine words, but his ideas are not so fine. He's not as blatant as Pat Buchanan, but his ideas are as discriminatory.

    Posted by: john patrick | Mar 13, 2014 12:11:50 PM

  25. @Gibblet

    Let me make myself clear:

    First, this Arizona bill was very bad because it protected only religious people and because it imposed unnecessary restrictions on business owners--their employees could refuse to perform their functions citing religious objections.

    Second, if I were a business owner I would not want to hire someone who converted to Islam because it's a totalitarian ideology spreading hatred toward people like me.

    Third, if I were a musician I wouldn't want to be required to perform Hava Nagila at the meeting of a local neo-Nazi group.

    Fourth, if I were a printer I wouldn't want to be required to print posters for the Westboro baptist church.

    Those are the reasons why non-discrimination laws are not the best thing since sliced bread.

    Posted by: AG | Mar 13, 2014 12:16:41 PM

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